Collando-Pena v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 05 April 2019
• Docket Number: Case No. 3:16-cv-1109-J-34PDB
• Parties: WILMAN COLLANDO-PENA, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

WILMAN COLLANDO-PENA, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:16-cv-1109-J-34PDB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

April 5, 2019

ORDER

I. Status

Petitioner Wilman Collando-Pena, an inmate of the Florida penal system, initiated this action on August 25, 2016,¹ by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1) in the Northern District of Florida. On August 30, 2016, the Northern District of Florida transferred the Petition to this Court. Doc. 4. In the Petition, Collando-Pena challenges a 2013 state court (Duval County, Florida) judgment of conviction for attempted first-degree murder and armed burglary. Collando-Pena raises nine grounds for relief. See Petition at 3-22.² Respondents have submitted a memorandum in opposition to the Petition. See Answer to Petition for Writ of Habeas Corpus (Response; Doc. 18) with exhibits (Resp. Ex.). Collando-Pena elected not to submit a brief in reply. Doc. 20. This case is ripe for review.

II. Relevant Procedural History

On October 29, 2012, the State of Florida (State) charged Collando-Pena by way of an amended Information with attempted first-degree murder (count one) and armed burglary (count two). Resp. Ex. 1 at 31-32. Collando-Pena proceeded to a jury trial, at the conclusion of which the jury found him guilty as charged as to each count. Id. at 43-46. The jury also found that Collando-Pena actually possessed a firearm during the commission of both offenses and that the structure he was found guilty of burglarizing as to count two was a dwelling. Id. On June 18, 2013, the circuit court sentenced Collando-Pena to a term of incarceration of forty years in prison with a ten-year minimum mandatory as to each count. Id. at 84-90. The circuit court ordered the sentences to run concurrently. Id.

Collando-Pena appealed the judgment of conviction and sentences to Florida's First District Court of Appeal (First DCA). Id. at 96. Collando-Pena's appellate counsel filed an Anders³ brief. Resp. Ex. 6. Several months later, appellate counsel filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) (Rule 3.800(b)(2) Motion) in the circuit court, in which he alleged the circuit court erred in imposing court costs and a public defender's lien. Resp. Ex. 5 at 1-6. The circuit court dismissed the Rule 3.800(b)(2) Motion as untimely due to the fact it was filed after the initial brief, in contravention of Rule 3.800(b)(2). Id. at 11-12. Collando-Pena did not file a pro se initial brief. Resp. Ex. 12. The First DCA ultimately affirmed the conviction and sentence on June 3, 2014, with a written opinion explaining why the Rule 3.800(b)(2) Motion did not preserve any errors on appeal. Id. On June 13, 2014, Collando-Pena,through counsel, filed a motion for rehearing, which the First DCA denied on July 9, 2014. Resp. Ex. 13. The First DCA issued the Mandate on July 25, 2014. Resp. Ex. 12.

On January 20, 2015, Collando-Pena filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. 14 at 1-28. Collando-Pena raised the following ten grounds for relief in his Rule 3.850 Motion: counsel inadequately argued a motion for judgment of acquittal (ground one); counsel failed to object to confusing and incorrect jury instructions (ground two); counsel failed to call a witness (ground three); counsel failed to introduce Collando-Pena's cellphone records at trial (ground four); counsel failed to call two witnesses (ground five); counsel failed to call a witness (ground six); counsel failed to object to Williams⁴ rule evidence (ground seven); counsel failed to object to the State and circuit court's statements that both offenses were punishable between forty years and life in prison (ground eight); counsel mislead Collando-Pena regarding the need for him to testify at trial (ground nine); and the cumulative effect of counsel's errors prejudiced him (ground ten). Id. On December 17, 2015, the circuit court denied the Rule 3.850 Motion. Id. at 29-42. On May 20, 2016, the First DCA per curiam affirmed the circuit court's denial of Collando-Pena's Rule 3.850 Motion without a written opinion and issued the Mandate on June 15, 2016. Resp. Ex. 17.

III. One-Year Limitations Period

The Petition was timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the need for a federal evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). "In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record before the Court. Because the Court can "adequately assess [Collando-Pena's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner's federal petition for habeas corpus. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S. Ct. 1432 (2017). "'The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of final state courtdecisions is "'greatly circumscribed' and 'highly deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion explaining its rationale in order for the state court's decision to qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court's adjudication on the merits is unaccompanied by an explanation, the United States Supreme Court recently stated:

[T]he federal court should "look through" the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by showing that the higher state court's adjudication most likely relied on different grounds than the lower state court's reasoned decision, such as persuasive alternative grounds that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was "adjudicated on the merits" in state court, § 2254(d) bars relitigation of the claim unless the state court's decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited scope of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for claims of state courts' erroneous legal conclusions. As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two distinct clauses: a "contrary to" clause and an "unreasonable application" clause. The "contrary to" clause allows for relief only "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id. at 413, 120 S. Ct. at 1523 (plurality opinion). The "unreasonable application" clause allows for relief only "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

Second, § 2254(d)(2) provides for federal review for claims of state courts' erroneous factual determinations. Section 2254(d)(2) allows federal courts to grant relief only if the state court's denial of the petitioner's claim "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The Supreme Court has not yet defined § 2254(d)(2)'s "precise relationship" to § 2254(e)(1), which imposes a burden on the petitioner to rebut the state court's factual findings "by clear and convincing evidence." SeeBurt v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348 (2013); accordBrumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that "precise relationship" may be, "'a state-court factual determination is not unreasonable merely because the federal habeas court would

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